EXHIBIT 10.2
SHAREHOLDER VOTING AGREEMENT
SHAREHOLDER VOTING AGREEMENT, dated as of April 30, 2001 (the
"Agreement"), among Xxxxxxxx & Xxxxxx Corporation, a Wisconsin corporation (the
"Company") and the persons listed on Schedule I hereto (each a "Shareholder"
and, collectively, the "Shareholders").
R E C I T A L S:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and National City Bancorporation, an Iowa corporation
(the "Seller"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), which provides, among other things, for the merger of Seller with
and into the Company (the "Merger"), all on the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Company has required that the Shareholders agree, and each
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Terms used and not defined herein, but defined in the
Merger Agreement, shall have the respective meanings ascribed to them in the
Merger Agreement.
2. Voting.
(a) Each Shareholder shall, at any meeting of the shareholders
of the Company, however called, or in connection with any written
consent of the shareholders of the Company, vote (or cause to be voted)
all Shares then held of record or beneficially owned by such
Shareholder, (i) in favor of the Merger, the execution and delivery by
the Seller of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
thereof and hereof and (ii) against any proposal relating to a
Competing Proposal and against any action or agreement that would
impede, frustrate, prevent or nullify this Agreement, or result in a
breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Seller under the Merger
Agreement or which would result in any of the conditions set forth in
Article VII of the Merger Agreement not being fulfilled.
(b) Each Shareholder hereby covenants and agrees that, except
as contemplated by this Agreement and the Merger Agreement, it shall
not (i) offer to transfer (which term
shall include, without limitation, any sale, tender, gift, pledge,
assignment or other disposition), transfer or consent to any transfer
of, any or all of the Shares beneficially owned by such Shareholder or
any interest therein without the prior written consent of the Company,
(ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares
or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to such Shares, (iv)
deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or (v) take any
other action that would make any representation or warranty of such
Shareholder contained herein untrue or incorrect in any material
respect or in any way restrict, limit or interfere in any material
respect with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement; provided,
however, any Shareholder may take any action prohibited by Subsections
2(b)(i), (ii), (iii) or (iv) hereof, so long as the transferee of the
Shares or rights agrees to take the Shares or rights subject to the
terms of this Agreement and the Shareholder promptly notifies the
Company in writing of such transfer.
(c) Subject to Section 6, each Shareholder hereby agrees that
such Shareholder shall not, directly or indirectly, encourage, solicit,
initiate or participate in any way in any discussions or negotiations
with, or provide any information to, or afford any access to the
properties, books or records of the Seller or any Seller Subsidiaries
to, or otherwise take any other action to assist or facilitate, any
person or group (other than the Company or any affiliate or associate
of the Company) concerning any Competing Proposal. Upon execution of
this Agreement, each Shareholder will immediately cease any existing
activities, discussions or negotiations conducted heretofore with
respect to any Competing Proposal. Each Shareholder will immediately
communicate to the Company the terms of any Competing Proposal (or any
discussion, negotiation or inquiry with respect thereto) and the
identity of the person making such Competing Proposal or inquiry which
it may receive; provided, however, any Shareholder, to the extent such
Shareholder is a director or officer of Seller, may exercise his or her
fiduciary duties as an officer or director of the Seller pursuant to
Section 4.4 of the Merger Agreement.
(d) Subject to the terms and conditions of this Agreement,
each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws
to consummate and make effective the transactions contemplated by this
Agreement, subject to the proviso contained in Subsection 2(c) above.
Each party shall promptly consult with the other and provide any
necessary information and material with respect to all filings made by
such party with any Governmental Authority in connection with this
Agreement and the transactions contemplated hereby.
(e) Each Shareholder hereby waives any rights of appraisal or
rights to dissent from the Merger that it may have.
3. Representations and Warranties of Each Shareholder. Each Shareholder
hereby represents and warrants, severally and not jointly, to the Company as
follows:
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(a) Such Shareholder is the record and beneficial owner of the
Shares set forth opposite its name on Schedule I. Such Shares
constitute all of the shares owned of record or beneficially owned by
such Shareholder on December 31, 2000. Except as set forth in Schedule
I, such Shareholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 2 hereof,
sole power of disposition, sole power to demand and waive appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of such Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Such Shareholder has the power and authority to enter into
and perform all of such Shareholder's obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a legal, valid and binding agreement of
such Shareholder, enforceable against such Shareholder in accordance
with its terms. Except as set forth in Schedule I, there is no
beneficiary or holder of a voting trust certificate or other interest
of any trust of which such Shareholder is a trustee, or any party to
any other agreement of arrangement, whose consent is required for the
execution and delivery of this Agreement or the consummation by such
Shareholder of the transactions contemplated thereby.
(c) Except for filings under the Exchange Act (i) no filing
with, and no permit, authorization, consent or approval of, any
Governmental Authority is necessary for the execution and delivery of
this Agreement by such Shareholder, the consummation by such
Shareholder of the transactions contemplated hereby and the compliance
by such Shareholder with the provisions hereof and (ii) none of the
execution and delivery of this Agreement by such Shareholder, the
consummation by such Shareholder of the transactions contemplated
hereby or compliance by such Shareholder with any of the provisions
hereof, except in cases in which any conflict, breach, default or
violation described below would not interfere with the ability of such
Shareholder to perform such Shareholder's obligations hereunder, shall
(A) conflict with or result in any breach of any organizational
documents applicable to such Shareholder, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or
both) a default (or give rise to any third party right of termination,
cancellation, modification or acceleration) under, any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind, including,
without limitation, any voting agreement, proxy arrangement, pledge
agreement, shareholders agreement or voting trust, to which such
Shareholder is a party or by which it or any of its properties or
assets may be bound or (C) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such
Shareholder or any of its properties or assets.
(d) Except as permitted by this Agreement, the Shares
beneficially owned by such Shareholder and the certificates
representing such Shares are now, and at all times during the term
hereof will be, held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all liens,
proxies, voting trusts or agreements, understandings or arrangements or
any other rights whatsoever, except for
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any such liens or proxies arising hereunder. The transfer by such
Shareholder of the Shares to the Company in accordance with the terms
of the Merger Agreement shall pass to and unconditionally vest in the
Company good and valid title to all Shares, free and clear of all
liens, proxies, voting trusts or agreements, understandings or
arrangements or any other rights whatsoever.
(e) No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Shareholder, except as set forth in the Merger Agreement.
4. Stop Transfer. Each Shareholder shall request that the Seller not
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares beneficially owned by
such Shareholder, unless such transfer is made in compliance with this
Agreement.
5. Termination. This Agreement shall terminate with respect to any
Shareholder upon the earliest of (a) the Effective Time, (b) the termination of
the Merger Agreement or (c) December 31, 2001.
6. No Limitation. Notwithstanding any other provision hereof, nothing
in this Agreement shall be construed to prohibit a Shareholder, or any officer
or affiliate of a Shareholder who is or has designated a member of the Board of
Directors of the Seller or an officer of Seller, from taking any action solely
in his or her capacity as a member of the Board of Directors of the Seller or an
officer of Seller or from exercising his or her fiduciary duties as a member of
such Board of Directors or an officer of Seller to the extent specifically
permitted by the Merger Agreement.
7. Miscellaneous.
(a) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of each Shareholder (in
the case of any assignment by the Company) or the Company (in the case
of an assignment by a Shareholder), provided that the Company may
assign its rights and obligations hereunder to any Company Subsidiary,
but no such assignment shall relieve the Company of its obligations
hereunder.
(c) Without limiting any other rights the Company may have
hereunder in respect of any transfer of Shares, each Shareholder agrees
that this Agreement and the obligations hereunder shall attach to the
Shares beneficially owned by such Shareholder and shall be binding upon
any person to which legal or beneficial ownership of such
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Shares shall pass, whether by operation of law or otherwise, including,
without limitation, such Shareholder's heirs, guardians, administrators
or successors.
(d) This Agreement may not be amended, changed, supplemented
or otherwise modified with respect to a Shareholder except by an
instrument in writing signed on behalf of such Shareholder and the
Company.
(e) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if given) by hand delivery
or by facsimile transmission with confirmation of receipt, as follows:
If to a Shareholder:
At the addresses and facsimile numbers set forth on Schedule I
hereto.
With a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Brand
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
If to the Company:
Xxxxxxxx & Ilsley Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
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or to such other address or facsimile number as the person to whom
notice is given may have previously furnished to the others in writing
in the manner set forth above.
(f) Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision or portion of any provision had never been
contained herein.
(g) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(h) The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(i) This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
(j) Except to the extent that the laws of the State of Iowa
are mandatorily applicable to the matters arising under or in
connection with this Agreement, this Agreement shall be governed by,
and construed in accordance with, the laws of the State of Wisconsin.
(k) The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement
in any Wisconsin state court located in the City of Milwaukee or any
Federal court located in the Eastern District of Wisconsin, this being
in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (A) consents to submit
itself to the personal jurisdiction of any Wisconsin state court
located in the City of Milwaukee or any Federal court located in the
Eastern District of Wisconsin in the event any dispute arises out of
this Agreement or any transaction contemplated by this Agreement, (B)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion
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or other request for leave from any such court and (C) agrees that it
will not bring any action relating to this Agreement or any transaction
contemplated by this Agreement in any court other than any such court.
The parties irrevocably and unconditionally waive any objection to the
laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in the courts of the
State of Wisconsin located in the City of Milwaukee or in any Federal
court located in the Eastern District of Wisconsin, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such action, suit or proceeding brought in
any such court has been brought in a inconvenient forum.
(l) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(m) This Agreement may be executed in counterparts (by fax or
otherwise), each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
(n) Except as otherwise provided herein, each party shall pay
its, his or her own expenses incurred in connection with this
Agreement.
IN WITNESS WHEREOF, the Company and the Shareholders have caused this
Agreement to be duly executed in multiple counterparts as of the day and year
first above written.
XXXXXXXX & XXXXXX CORPORATION
By:
--------------------------------------
Name:
Title:
SHAREHOLDERS:
Xxxxxx X. Xxxxxxx Revocable Trust,
amended and restated November 3, 1998
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Xxxxx X. Xxxxxxx Revocable Trust,
amended on December 18, 1998
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
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D.I.A. Revocable Trust,
amended and restated on July 15, 1995
-------------------------------------------
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Trustee
Xxxxxx Xxx Xxxxxxx McMurtie Trust
amended and restated on September 14, 1999
-------------------------------------------
Name: Xxxxxx X. Andreas
Title: Trustee
Xxxxx X. Xxxxxxx Trust,
amended and restated on August 1, 2000
-------------------------------------------
Name: Xxxxxx X. Andreas
Title: Trustee
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SCHEDULE I
Name, Facsimile Number and Address of Number of Shares of Seller Common Stock
Shareholder Beneficially Owned
--------------------------------- -----------------------------------
NAME: Xxxxxx X. Xxxxxxx, as trustee of the 321,560
Xxxxxx X. Xxxxxxx Revocable Trust, amended
and restated on November 3, 1998
ADDRESS: 0000 Xxxx Xxxxx Xxxx. X. #000
Xxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
NAME: Xxxxx X. Xxxxxxx, as trustee of the 499,090
Xxxxx X. Xxxxxxx Revocable Trust,
amended on December 18, 1998
ADDRESS: c/o National City Bancorporation
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
FAX: (000) 000-0000
NAME: Xxxxxxx Xxxx Xxxxxxx, as trustee of 1,686,566
the D.I.A. Revocable Trust, amended and
restated on July 15, 1995
ADDRESS: c/o Archer Xxxxxxx Midland
0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
NAME: Xxxxxx X. Andreas, as trustee of 605,876
the Xxxxxx Xxx Xxxxxxx McMurtie Trust
amended and restated on September 14, 1999;
and as trustee of the Xxxxx X. Xxxxxxx Trust,
amended and restated on August 1, 2000
ADDRESS: c/o Archer Xxxxxxx Midland
0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
